PRIVATE CONSULTING BY FACULTY
These arrangements are personal agreements between a faculty member and a private company. While OLA cannot provide personal legal advice to faculty members, we recommend that you carefully review the terms and conditions of your consulting arrangements. You should be particularly careful that these arrangements do not conflict with Georgia Tech's policies on Conflict of Interest and Intellectual Property. You should also be careful that any obligations you agree to do not prevent you from conducting your normal research and teaching duties. To avoid conflict with your Georgia Tech-assigned duties, we recommend that the following language be included in your consulting agreement:
"This agreement is made subject to the understanding that
Consultant is a member of the faculty of the Georgia Institute of
Technology (GIT), that he/she must fulfill certain obligations
including teaching, directing laboratory operations and conducting
research; and that as a result of his/her employment by GIT, GIT has
certain rights to intellectual property developed by him/her and any
rights conveyed hereunder shall be subject to those rights. Under no
circumstances are any rights to GIT or Georgia Tech Research
Corporation intellectual property conveyed hereunder. All consulting
activity hereunder shall be on a non-interfering basis with normal
GIT activities. Nothing contained in this Agreement shall directly or
impliedly affect the obligations listed above."
HIRING A CONSULTANT FOR AN INSTITUTE PROJECT OR
FUNCTION
Consultants for research projects
should be retained through the Office
of Sponsored Programs (OSP) in the Office of Contract
Administration. All other consultants should be retained through Procurement
Services . These offices have standard consulting contracts, which can be
used to get a consultant in place quickly. For more information
relating to hiring a consultant, please refer to Sections 5.3.1 through 5.3.3
of the GIT Procurement
Services Policy.
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Copyright protection covers the expression of an idea, not the idea itself. Papers, journal articles, course outlines and notes, software, databases, video and other audiovisual work, artwork, graphics, etc. all qualify for copyright protection. It is not necessary to register your work with the U.S. Copyright Office in order to claim copyright protection. It is advisable, however, to mark your work with a copyright notice as follows:
Copyright (year of publication)
Georgia Tech Research Corporation (or other author, as
appropriate)
All rights reserved.
If you post your work to the World Wide Web, it is particularly important to place a copyright notice on your work to put users on notice of your copyright.
Pursuant to the Georgia Tech Intellectual Property (IP) policy, OLA no longer reviews agreements for the publication of your work in scholarly journals or other publications. Under the new IP policy, scholarly and creative works, such as textbooks, similar course material, books, journal articles, etc., you create are owned by you, provided that such works are not deliverables or are not specifically written pursuant to a sponsored research agreement or other specific institute assignment. The general obligation to produce scholarly and creative works does not constitute a specific assignment for this purpose. Please make sure that you carefully read the terms and conditions of any agreement involving publication of your work before you sign it to make certain you are not surrendering any IP rights you may wish to retain.
If you plan or expect to produce scholarly or creative works pursuant to a sponsored research agreement or other specific institute assignment, please contact the Office of Technology Licensing (OTL) in GTRC so they may approve the release of the work and make certain there are no contractual or other restrictions regarding the work. You may also contact OTL for assistance in determining ownership of IP rights in any work.
When you need to develop a course pack for use in your class, to use materials you download from the World Wide Web or to otherwise use copyrighted material developed by others, we caution you to make sure that your use of the material qualifies as fair use under copyright law and, if it does not qualify, that you make sure you pay the appropriate licensing fees. For help in determining when a use is fair, see the Regents Guide to Understanding Copyright and Fair Use, or call us. The Printing and Copying Services in the Office of Information Technology can help you with copying and determining the applicable license fees.
For software or other copyrightable materials that you have developed and are interested in licensing, you should contact OTL.
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CONFIDENTIALITY/NON-DISCLOSURE AGREEMENTS
Non-Disclosure Agreements (NDAs), Proprietary Information Agreements (PIAs) and Confidentiality Agreements (CAs) are interchangeable terms. All refer to an agreement used to protect and govern the exchange of confidential information. We ordinarily use the term "NDA".
There are three (3) types of NDAs:It is uncommon in the negotiation of NDAs for external parties to present their own standard NDA for use. However, when GTRC is the only party disclosing proprietary information, it is the policy of the Office of Legal Affairs (OLA) to use only our standard NDA-Out model.
For mutual proprietary information exchanges and the receipt of proprietary information from outside parties, OLA recommends presenting external parties with and using our standard Mutual NDA and NDA-In model, whichever is applicable, as it greatly reduces NDA negotiation time. We have revised our standard language which most major companies find acceptable. We have been very successful in using it.
If necessary, OLA will review external parties' form NDAs. In most cases, GIT or GTRC/ GTARC cannot legally sign these NDAs without modification. The aim of our office in NDA negotiations is to make certain the external parties' NDA form adheres as closely as possible to language contained in OLA's standard NDAs and reflects the applicable statutory and policy requirements by which GIT and GTRC/ GTARC must abide. Thus, review and negotiation of external parties' NDA form takes longer than using our standard NDA. Negotiation of NDA changes can last days, weeks, or months, depending on the number and the type of changes requested.
To assist our office in providing better service when submitting NDA requests, complete the NDA Routing Form NDA routing form - November 2005 (doc) and send the request to Asklegal@gatech.edu . Please let us know whether there are any time constraints involved and the exact name of the time constraints to assist in prioritizing NDA requests. Our office receives numerous NDA requests daily. Thus, if it's a RUSH, please bold, highlight and place the word "RUSH" in all capital letters in your initial email or fax request.
Only an authorized GA Tech or GTRC/GTARC signatory can sign NDAs (and other agreements) on behalf of GA Tech. You could be held personally liable if any breaches or omissions occur under the NDA. Never sign any agreements involving work you are to perform within the scope of your employment; instead, please forward them to our office for review.
Once the NDA has been fully executed, an NDA memo and signature sheet is sent to the main PI. Georgia Tech employees receiving proprietary information under the NDA must sign the signature sheet indicating that they have received a copy of the NDA, read it and have agreed to be bound by its terms. If the signature sheet is not received by OLA within thirty (30) days, then a reminder memo is sent. After sixty (60) days, if the signature sheet has not been received, a second reminder is sent. If, after ninety (90) days, the signature sheet still has not been returned, no further NDAs will be processed for the main PI.
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CONFLICTS OF INTEREST/ETHICS FOR GOVERNMENT EMPLOYEES
The Georgia General Assembly adopted statutory provisions governing conflicts of interest for employees of the State of Georgia. As state employees, all faculty, staff, and student employees of Georgia Tech are bound by the State of Georgia Code of Ethics for Government Employees found in O.C.G.A. Section 45-10-1 (the "Code"). Employees should avoid situations in which there is or may be a conflict between the employee's private interests and public duties. The Georgia Attorney General has defined "conflict of interest" as the "principle that a public official or employee must not place himself in a position where his private and personal interest (as distinguished from a general citizenship interest) might prevent or appear to prevent him from exercising his official judgment, discretion, powers or duties in an unbiased manner. The obligation is founded on the right of the People (whom he serves) to have his best judgment and actions from the viewpoint of what is best for the general public, and to have it without fear that the decision, judgment or action has been influenced by considerations of his personal profit." (Position Paper of the Georgia Attorney General, "Conflicts of Interest of Public Officers, Employees and Agents", 1976).
The Code divides state officials and employees into different categories depending
on their respective powers (i.e., statewide powers or limited powers, O.C.G.A.
Section 45-10-22(a)). State employees with statewide powers may not transact
business with any agency; state employees with limited powers are prohibited
from doing business with the agency for which the employee serves. The prohibition
applies to businesses in which the state employee or his/her family has a substantial
interest. (Georgia Tech employees generally fall under the category employees
with limited power)
The Code covers both full time and part-time employees, but a part-time employee
is prohibited from doing business only with the particular agency by which he
or she is employed.
The term “family” means spouse and dependents, and the term “substantial
interest” is defined as “the direct or indirect ownership of more
than 25% of the assets or stock of any business.” One relevant exception
from these restrictions is the exception for full-time employees of the Board
of Regents who serve as members of the governing bodies of private, non-profit
athletic or educational foundations that support the colleges and universities.
Each state employee who has transactions with the state or any state agency
must file an annual report with the Secretary of State detailing all transactions
which exceed $250.00 individually, or which in the aggregate exceed $9,000.00
for a calendar year. (O.C.G.A. sec. 45-10-26.)
The creation of faculty start-up companies has increased the likelihood of conflicts
of interest. Conflicts of interest may occur when a faculty member creates intellectual
property covered by Georgia Tech's Intellectual Property Policy, then desires
to enter into a business relationship with GTRC concerning the faculty member's
exploitation of GTRC intellectual property via a faculty start up. This type
of conflict can be managed, provided the faculty member has the approval of
his or her Chair/Director and enters into an agreement with GTRC to manage the
conflict. Faculty wishing to start a company with intellectual property covered
by Georgia Tech's Intellectual Property Policy should contact GTRC prior to
the creation of any such company.
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Georgia Tech's status as a state university imposes certain restrictions on its contracting activities that a private university or company does not face. Many standard clauses typically found in commercial contracts can not be accepted by Georgia Tech. The restrictions are based on constitutional and statutory prohibitions. Contract issues also may arise from Georgia Tech in the performance of sponsored research through GTRC. Although GTRC is not a state agency, as a Cooperative Organization of Georgia Tech, it is GTRC's policy not to accept contract terms that Georgia Tech is prohibited from accepting, since obligations under GTRC research contracts are passed through to Georgia Tech.
Common Prohibited Contractual Provisions
1. Indemnification and/or hold harmless - Any provision that requires Georgia Tech to pay all losses another party may incur. State agencies are prohibited from agreeing to indemnify third parties. Indemnification provisions have been determined to violate the prohibition against pledges of the State's credit and the prohibition against gratuities by the State (Ga. Const. Art. VII, Sec. IV, Par. VIII; Ga. Const. Art. III. Sec. VI, Par. VI; 1980 Op. Att'y Gen. 80-67; Op. Att'y Gen. 74-115. Indemnification provisions have also been determined to be invalid as unauthorized attempts to contractually waive the State's sovereign immunity 1980 Op. Att'y Gen. 80-67.
The first constitutional provision provides that the credit of the State shall not be pledged or loaned to any individual, company or association. Debt as used in the constitution is defined in terms of an annual budget cycle that relies on annual appropriations of the legislature. Under this definition, a "pledge" would include agreeing to obligations of funds beyond the current fiscal year. The second constitutional provision relates to the "gratuities clause" which prohibits state entities from granting any donation or gratuity (gift) to a third party or forgiving any debt or obligation owed to the public. The gratuities clause essentially requires that the state entity receive a substantial benefit for the grant or use of its assets (whether using property or personnel). Finally, by virtue of the doctrine of sovereign immunity, suit may not be maintained in the courts against a state entity without the express consent of the State.
Patent and Copyright Indemnification - The Attorney General has taken the position that it is the sole legal advisor for the state and state entities may not agree to be represented by third parties, even when the matter involves the third party defending its patent rights.
2.Warranty/Guarantee - Any provision that unconditionally assures or promises a certain result or outcome, including such terms as acceptance testing. The Attorney General has advised that warranty provisions violate the prohibition against pledges of the State's credit and the prohibition against gratuities by the State. The reason is that resources may have to be expended to satisfy such warranty or guarantee.
3. Governing law of or venue in any state other than Georgia. Contracts with state entities must be governed by the laws of the State of Georgia. State law provides that the Attorney General has exclusive authority and control over all matters of litigation or potential litigation involving State agencies. As a result, Georgia Tech does not have statutory authority to accept the governing laws of another state. There is also a practical aspect to this position: the Attorney General's staff does not want to agree to obey laws for which they are unfamiliar.
4. Requirements that Georgia Tech pay taxes, interest, liquidated damages, penalty fees or cancellation charges, litigation costs, or attorney's fees.
ATTORNEY'S FEES/COSTS. We do not agree to pay these costs. The rationale is that such a payment would be a violation of the constitutional gratuities clause.
DAMAGES. Damage clauses that are limited to consequential damages or special damages are generally acceptable since they are so ill-defined and speculative that most courts refuse to award them (i.e., lost profits). However, adding indirect or incidental as additional types of damages payable by Georgia Tech is not acceptable. The UCC regards these as distinguishable from consequential damages because they are usually meant to include out of pocket expenses directly attributable to the breach (i.e., travel expenses).
INTEREST. With the exception of the Standard MULTI-YEAR Agreement (which is an installment purchase agreement), Georgia Tech will not agree to pay interest. The Attorney General has advised us that payment of interest would be prohibited by the gratuities clause of the constitution and that Georgia Tech lacks statutory authority to agree to the payment of interest. Atty. Gen. Position Paper dated August 8, 1978; Bently v. State Board of Examiners, 152 Ga. 836 (1922).
LATE PAYMENT/CANCELLATION CHARGES. GIT does not agree to pay late payment charges. This policy stems from an opinion of the Attorney General that late payment charges are in the nature of penalty/gratuity which the State is constitutionally prohibited from paying.
TAXES. The State is exempt from most taxes and generally will not agree to contract language which requires the payment of taxes. We will not agree to reimburse the vendor for the payment of taxes. We will agree to language that says "GIT will pay taxes lawfully imposed upon it".
5. Binding arbitration. Georgia Tech does not agree to binding arbitration. The rationale is that there is no specific statutory authority allowing us to do so. Attorney General has exclusive authority and control over all matters of litigation or potential litigation involving State agencies, thus Georgia Tech has no authority to limit the type or scope of judicial action, or the result obtainable therefrom by the State. Provisions which effectively waive the right of the Attorney General to bring actions on behalf of the state are prohibited.
6.Restrictions on publication that prevent publication or delay publication for an unreasonable amount of time. As non-profit educational institutions, Georgia Tech and its cooperative research foundation, the Georgia Tech Research Corporation, are subject to the provisions of the Bayh Dole Act and Intenal Revenue Procedure 97-14, Guidelines for Research Agreements, which require that we ensure new intellectual property is made available for public use. An agreement not to publish may impact Georgia Tech and GTRC in a variety of ways. It may cause the research to be considered commercial research, thereby affecting tax-exempt status of the organization, the tax exempt status of bonds used to fund a facility, the use of facilities may be considered a private business and/or may cause the institute to lose an exemption under export regulations where the sponsor is a foreign entity. We may agree to reasonable delays that are needed to preserve potential patent rights. In addition, in contracts with foreign entitites, the failure to publish may affect Georgia Tech's ability to rely on the public domain and fundamental research exceptions in the export laws and regulations.
7. Any provision requiring Georgia Tech to be bound by terms and conditions that are unknown at the time of signing the agreement. Unknown obligations may violate various laws such as the prohibition against pledges of the State's credit and the prohibition against gratuities by the State. As a practical matter, entering into contracts that call for an unspecified sum of money to change hands make it extremely difficult to budget. Such provisions in a contract would be void as a matter of law, and should be avoided at the time the contract is entered.
8. Requirements that provide for endorsement or marketing of a private entity by Georgia Tech. The mission of Georgia Tech is to contribute to the fulfillment of the scientific and technical needs of the State of Georgia through education, research and service. Endorsing a particular entity's product may be counter to the mission. The faculty must be free to reach independent conclusions and publish opinions which are free from corporate influence.
9. Any provision requiring exclusivity in a contractual arrangement that was not competitively bid. Certain sponsored research agreements, such as teaming agreements may have limited exclusivity provisions, provided that exclusivity is restricted to the lowest possible level (i.e., Project Director, Lab, School, etc.). State agencies must comply with the competitive bidding/purchasing statutes and the Georgia Vendor's Manual with regard to items that must be purchased by competitive bidding vs. sole source. For more information, review the Georgia Tech Purchasing Department's web site or contact a Purchasing Officer for more information regarding specific requirements.
10. Multi-year terms or automatic renewals for agreements obligating state appropriated funds. All contracts must expire at the end of the fiscal year (July 1 - June 30). (O.C.G.A. Sec. 50-5-64; Attorney General Op. 74-115). Pursuant to O.C.G.A. Sec. 50-5-64, agreements that cross the fiscal year boundary must be on the Department of Administrative Services' Installment Purchase Form. Payment of interest is generally prohibited, but use of the Standard Installment Purchase Agreement Form allows for the payment of interest (note that this is the only statutory authority for payment of interest - Georgia Tech may not otherwise agree to pay interest). The state statute requires use of specific clauses like the renewal clause above and specific funding language which allows for instantaneous termination in the event funds are not appropriated in subsequent years. (See O.C.G.A. Sec. 50-5-64 for specific language required).
Sample Language:
"Renewal - GIT may renew this Agreement for additional periods of one year each. Service sunder this Agreement are subject to the needs of GIT in its sole discretion and are specifically subject to appropriations of adequate and sufficient funds in the fiscal year services are purchased, failure of which shall render this Agreement void."
OR
"Funding - Nothwithstanding any provision of this Agreement, the parties hereto agree that the charges hereunder are payable by GIT from appropriations received from the General Assembly of the State of Georgia. In the event that the source of payment for the total obligation no longer exists or is insufficient with respect to the services, in the sole discretion of GIT, then this Agreement as to all services, or as the case may be, as to any service(s) included under this Agreement, shall terminate without further obligation of GIT as of that moment. The certification of GIT of the events stated above shall be conclusive."
Contracts may not allow for automatic renewals when state funds are/would be obligated in subsequent fiscal years. Atty. Gen. Op. 74-115. Contracts may be renewed at the sole discretion of GIT. The AG ruled that the contract may be renewed prior to the end of the fiscal year if all of the funds are available and are unencumbered during that same fiscal year. Atty. Gen. Op. 80-163.
Sample Language:
"This Agreement shall commcence on ___and shall continue until the close of the then current fiscal year of the State of Georgia (July 1 through June 30). GIT shall have the option, exercisable in its sole discretion, to renew this Agreement upon the same terms and conditions for ___ additional periods of one fiscal year each. GIT may, in its sole discretion, renew as to all goods and services to be provided hereunder, or as to only select goods and services. In the event GIT elects as to less than all of the goods and services to be provided hereunder, it shall specify those goods and services to be deleted..."
OR
"GIT may renew the Agreement for additional periods of one year each. Services under this Agreement are subject to the needs to GIT in its sole discretion and are specifically subject to appropriations of adequate and sufficent funds in the fiscal year services are purchased, failure of which shall render this Agreement void."
11. Best efforts provisions that require the expenditure of any funds or efforts necessary to meet the obligations of a contract, even if such efforts exceed the dollar amount of the contract. Best efforts provisions have been held to be warranties and/or guarantees. Such provisions violate the prohibition against pledging the State's credit. (Refer to discussion of warranties above for more information).
12. Contractural provisions that require Georgia Tech to waive potential claims against a third party or otherwise limit the liability of such party. GIT does not have the authority to prejudice the rights of the State to sue or otherwise enforce a contract by agreeing to a limit on or a waiver of liability. (Refer to discussion of arbitration, above, for more information).
13. Contractural provisions which require Georgia Tech to accept the risk of loss of an item during delivery. Generally we want delivery F.O.B. Georgia Tech's facility so that the risk of loss is on the seller until such delivery. As a rule, we do not accept risk of loss until title actually passes to Georgia Tech because we have no way to cover the item under the state self-insurance policy.
14. If the agreement is a result of an ITB or an RFP, we do not allow vendors to disclaim warranties. The rationale is that a purchase resulting from a competitive process should provide for specific products or services to be provided to us to fit a particular need/purpose. To allow a vendor to disclaim a warranty of fitness in such a case would defeat the competitive process.
15. Contractural clauses that require Georgia Tech to purchase insurance policies or provide coverage for third parties. Georgia Tech, as a state agency, does not have authority to purchase commercial insurance. State law provides for the Department of Administrative Services to procure insurance for State entities. Georgia Tech is covered by the Tort Claims Act and the State of Georgia Broad Form Insurance that is administered by the Department of Administrative Services.
16. Provisions that prohibit a contractor's employee from accepting a position with Georgia Tech or provisions which require Georgia Tech to comply with contractor regulations (including union rules). The State of Georgia is a right to work state which allows individuals to refuse to participate in labor organizations or refrain from certain affiliations. (O.C.G.A. Sec. 34-6-21). This also means that the State will not prohibit anyone from applying for a job with any State Agency.
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OLA advises the Georgia Tech administration and management on matters related to specific employment issues, as needed. You should, however, first contact the Office of Human Resources (OHR) or the applicable office listed below for help with specific problems.
Americans With Disabilities Act - Disability Services Coordinator
Discriminatory Practices - Office of Diversity Management
Non-Immigrant Visas - OHR
J-1 and Student Visas - Office of International
Education
Other Employment Concerns - OHR
Permanent Residence - OHR
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To borrow equipment from a sponsor or other third party for use on a sponsored
research project, you should contact your contracting officer in the Office
of Sponsored Programs. All other equipment loan agreements are handled by
OLA and should be forwarded to us for review and approval of the legal terms.
Donation Agreements should be sent to the Office of Development for handling.
Equipment loaned to Georgia Tech is covered by Georgia
Tech's insurance only when the loan is covered by a written agreement. Equipment
that is donated is covered by insurance once title passes to Georgia Tech; however,
equipment donations should also be covered by a written agreement. Contact the
Office of Risk Management at 894-4626 with specific questions regarding insurance
coverage for equipment.
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On November 2, 2002 the President signed into law the Technology, Education and Copyright Harmonization Act of 2002. The TEACH Act amends the Copyright Act of 1976 by rewriting Section 110(2) and adding a new Section 112(f). Together, these revisions give instructors at accredited nonprofit educational institutions and governmental bodies teaching via interactive digital networks on campus and at a distance, enhanced capability to employ most third-party copyrighted works in electronic courseware without the need to secure permission from copyright owners. These changes bring into closer congruity an instructor's rights to use copyrighted works in face-to-face and remote teaching settings.
The new flexibility accorded to instructors, however, requires significant actions
and investment by institutions to protect the integrity of the copyright works
used in the courseware and to promote respect for the rights of copyright owners.
The Section 110(2) amendments that expand instructor rights include:
The counterbalancing limitations and restrictions include the following:
Works primarily produced or marketed for the digital distance education market, works not lawfully acquired or made,and works such as textbooks and coursepacks typically purchased by students individually are not covered under Section 110(2).
The transmitting institution must:
Section 112(f) gives eligible transmitting institutions the right to make copies of digital works and to digitize portions of analog works in order to make the performances and displays authorized by Section 110(2), provided that:
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EXPORT ISSUES AND INTERNATIONAL TRAVEL
This summary of export compliance procedures is designed to provide a broad
overview of the agencies and regulations involved in exporting goods and services.
The procedures outlined herein should always be supplemented with a thorough
review of the applicable regulations in effect at
the time of export. Detailed information is available on the GIT export website at: http://www.export.gatech.edu
The Arms Export Control Act of 1976 (AECA) and the International Traffic in Arms Regulations (ITAR) govern the export of defense articles, related technical data and defense services. AECA and ITAR are administered by the State Department's Office of Defense Trade Controls (DTC). All exports require a license. It is important to understand that a conversation can be an export, just as providing equipment or technical data to a foreign national is an export. For example, giving controlled information to a foreign visitor may be an export. For this reason, proposals to be submitted to foreign sponsors should first be reviewed by the Office of Legal Affairs to ensure that the information contained therein is not controlled.
If an Export Control Review is required, please be sure to complete the Export Certification and Review Form located on the GIT export website at: http://www.export.gatech.edu and submit to our office.
Export of Items on the U.S. Munitions List:
There is a two-step process for exporting defense items. The first, registration with DTC, has been accomplished for GTRC and GTARC. The second is the actual licensing procedure, which covers three broad categories of exports: (1) defense articles (items designated on the U.S. Munitions List), (2) Manufacturing Licenses and Technical Assistance Agreements (TAA), (3) unclassified technical data and classified information. For the first and third categories, DTC issues a license; for the second category, no license is issued, but DTC approves the TAA on an individual basis. A TAA may not go into effect until DTC has issued its written approval.
A license is used when exporting data or equipment. A TAA is required if GT is furnishing assistance (including training) to foreign nations (whether assistance is provided in the U.S. or abroad) in the design, development, engineering, manufacture, testing, repair, maintenance, operation of any defense article, alone or in conjunction with furnishing a foreign national any technical data controlled by the ITAR. A project may not proceed until State Department approval has been obtained.
As with other sponsored research projects, research staff and faculty should submit their proposal to the Office of Sponsored Programs (either OCA or Industry as appropriate) and a request for export review to Exportcontrol@gatech.edu. If an Export Control Review is required, the Contracting Officer will have you complete the Export Certification and Review Form located on the GIT export website at: www.export.gatech.edu and it will be submitted by the CO to the Office of Research Compliance to initiate a review. The Office of Legal Affairs (OLA) provides export review and assistance to OSP Research Compliance.. The TAA sent in for approval should be acceptable to both parties but should not be signed by either party. Review and approval by DTC can take six months or more. Once approved, the terms of the TAA may not be modified (including the scope of work identified in the TAA) without review and approval by DTC. DTC may approve, reject, amend or cancel any export authorization at any time.
Export of Non-Military (civilian) Items:
The EAR is intended to serve national security, foreign policy, nonproliferation, and short supply interests of the U.S. A review of the EAR for determining export requirements is a very extensive and technical review. EAR license requirements are dependent upon an item's technical characteristics, the destination, the end-use, the end-user, and other activities of the end-user.
If you believe that you may be dealing with a sponsored project involving technology, equipment or materials under the EAR you may initiate a review by submitting a completed Export Certification form to the Office of Research Compliance at http://www.export.gatech.edu. ORC will refer the matter to OLA for assistance. The following information should be included when completing the certification form: a detailed description of the item or technology, where it is going, who will receive it, what they will do with it, and what else it can be used for, and specific information relating to what the particular item will be used for. The descriptions should be sufficiently detailed to faciliate an accurate classification. The Project Director will need to assist ORC and OLA with the classification of the technology/item as part of the review process. Based on the information provided, OLA will determine whether a license is required. If OLA is unable to determine the classification, a request will be submitted to the Commerce Department. It generally takes 60-90 days for the Commerce Department to respond to such a request. Once the item is classified by the Commerce Department, OLA will be able to determine whether a license is required.
If a license is required, an application for license will be submitted to the Commerce Department. The license approval process may take six months or more.
Public Domain Information:
The export regulations contain an exception for information that is in the public domain. Public Domain information includes information that is published and generally accessible or available to the public through sales at the news stands and bookstores, subscriptions available without restriction, libraries open to the public, patents available at the patent office, and through fundamental research involving general scientific, mathematical, or engineering principles commonly taught in academia. University research will not be considered fundamental research if there are publication restrictions or if the research is funded by the U.S. Government, and specific access and controls are applicable. Thus, many of GT's contracts will be subject to export restrictions. There are other circumstances where, for the purposes of these regulations, GT research projects will not fit the definition of fundamental research or be exempt under the public domain exception. An export review is initiated by submitting a completed Export Certification form to the Office of Research Compliance at: http://www.export.gatech.edu
OLA will make the determination as to whether the information to be exported is public domain information.International Travel
The policies and procedures relating to the approval of International Travel for Georgia Tech business have been revised to include an export review under certain circumstances. Travelers will now complete four export control questions that have been added to page two of the Travel Authority Request Form. An export review must be obtained from the Office of Legal Affairs prior to travel if any questions are answered yes on page two of the Travel Authority Request Form. Prior to international travel, faculty should become aware of applicable export laws, regulations and risks associated with international travel. Additional information is available on the GIT export website at: http://www.export.gatech.edu
Plans for international travel should be submitted to the Office of Legal Affairs (via the two-page Travel Authority Request Form) not later than 30 days prior to the desired departure date for travel to a foreign country and 45 days for travel to sensitive countries under travel advisories or involving the shipment of equipment or biological materials. The earlier the proposed travel is reviewed, the greater likelihood of processing reviews without delay. Processing a license can take up to a few months. Thus, if the need for a license is anticipated, request for travel needs to be received well in advance.
Penalties:
There are severe criminal and civil penalties for failure to comply with export
regulations. We encourage you to call us as soon as you
know that you will be dealing with a foreign entity. You should also contact
the GTRI Office of Research
Security prior to such dealings. In the event you become aware
that you have provided information to a foreign national that may be controlled
by these regulations, contact OLA immediately.
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As a state university, Georgia Tech is subject to the provisions of the Georgia Open Records Act (ORA). The ORA provides that all citizens are entitled to view the records of state agencies on request and to make copies for a fee. The ORA requires that Georgia Tech produce public documents within three business days. If you receive a request for records under the Act, please call our office immediately; if the request is in writing, fax the request to our office. There is no legal requrement that ORA requests be made in writing.
The Freedom of Information Act (FOIA) is the federal government's equivalent of the ORA and applies to requests for information made to federal agencies. Each agency may have its own rules with regard to handling FOIA requests. The agency is responsible for meeting its FOIA responsibilities. If you have received sponsored funding from the federal government, you may be asked by the federal agency to review a FOIA request to identify whether any of the records are exempt. Upon request, OLA may help you with this determination.
Requests for student records are governed by the Family Educational Rights and Privacy Act (FERPA). See FERPA
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Requests for an H1-B visa should be directed to the Office
of Human Resources. Information regarding permanent
residency is available on the Office of Human Resources web page; further
questions should be directed to OLA. Questions relating to J-1 visas and student
visa issues are handled by the Office of
International Education. If you need to make a payment to a nonresident
alien for services, travel expenses, or want to pay an honorarium, you should
be aware that the type of visa on which the alien is traveling will determine
whether or not such payments can legally be made by Georgia Tech. For further
information on exactly what can be paid under particular visas, you should consult
the Business
Office Practices and Procedures Manual. Questions related to foreign
visits to campus should be coordinated with the GTRI Office of Research Security.
Any exports to a nonresident alien should be coordinated with OLA (see "Export
Issues," above.).
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Processes, systems, methods of operation, concepts, principles and discoveries
qualify for patent protection. Unlike copyright protection, to claim patent
protection in an invention, you must apply for and receive a patent from the
US Patent and Trademark Office. To qualify
for patent protection your idea must be novel, useful and original. Patent filings
for inventions developed at Georgia Tech are handled by outside attorneys through
the Office of Technology Licensing
in GTRC. If you have an invention that you think might qualify for patent protection,
contact the Office of Technology Licensing for further information.
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Contracts for sponsored research are handled by the Office
of Sponsored Programs (OSP). Although there may be legal issues under negotiation
by OSP in many of these agreements, OLA does not routinely become involved in
the negotiation process. OLA reviews such agreements only if requested to do
so by OSP for general legal issues or by the Office
of Technology Licensing (OTL) for intellectual property issues, but such
reviews occur on few research contracts. If you think OLA might be involved
in the review or negotiation of your research contract and you have not heard
from us, please give us a call to determine if the contract is in our office.
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The Board of Regents of the University System of Georgia (BOR), in its policy manual, specifically addresses the issue of authorization to enter into contracts on behalf of the BOR. The BOR retains the right of approval for certain contracts and delegates contracting authority to the President for others. The President must specifically delegate authority for a Georgia Institute of Technology employee to enter into a contract that binds GIT. Such delegation must be in writing and the recipient official may not further delegate the authority. Unless you have written authority to execute specific contracts, you should refrain from signing anything in the name of GIT, since under Georgia law individuals who do so without authority may incur personal liability under any contracts they sign. If you need assistance to determine who is authorized to sign a specific document, you should contact OLA.
For purposes of this topic, a contract is any agreement between GIT and another, whether or not it is titled a contract. It includes any agreement made on behalf of GIT in which the parties make legally enforceable commitments. Other terms sometimes used to refer to a contract include, but are not limited to, agreement, letter of agreement, letter of intent, memorandum of understanding, consortium agreement, operating agreement, and equipment loan.
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OLA reviews all licenses for software being purchased or licensed for use at
Georgia Tech. When a particular piece of software requires a license, you should
forward the license to OLA for review, negotiation and signature. If the agreement
provides for a license fee, we will need a copy of the signed Purchase Order
before we can sign the license. Many software licenses contain one or more of
the following provisions, which are a problem for Georgia Tech, as a state entity:
1) governing law of any state other than Georgia; 2) indemnification; 3) limitation
of remedies; 4) multi-year term; 5) penalties for late payment/interest payments;
6) perpetual confidentiality obligations even if the software enters the public
domain; 7) release of company from liability for direct damages caused by the
software; 8) arbitration; and 9) any warranties and/or guaranties required to
be provided by Georgia Tech. We are usually successful in negotiating these
provisions out. Once the license is signed, a copy will be provided to you.
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OLA provides advice to the Vice President for Student Services, the Dean of Students and staff on a wide range of subjects, including student organizations, disability services and disciplinary action. We also review agreements for performances, speakers and other entertainment brought to campus by the Student Center Programs Council and the Theatre for the Arts.
While we cannot provide personal legal advice to students, the Student
Government Association (SGA) arranges for outside attorneys to be available
on campus to provide personal legal advice to students. For further information
on the exact time and location, you should contact the SGA or the Office
of the Dean of Students.
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Shortly after the attack on the World Trade Center September 11, 2001, President Bush signed into law the "USA Patriot Act" (Public Law 107-56; 115 stat. 272). The effects of this Act on educational institutions are summarized briefly as follows:
The Act makes it a crime punishable by fine or up to 10 years in prison for knowing possession of a biological agent, toxin or delivery system of a type or in a quantity not reasonably justified by a research or other peaceful purpose by a foreign national of a country supporting terrorism. (See 42 CFR Part 72, Appendix A)
The Act allows universities as Internet Service Providers (ISPs) to disclose to law enforcement officials contents of an electronic communication if the ISP believes there is an emergency involving immediate danger of death or serious injury. The Act also provides law enforcement officials the ability to access a broader range of information with subpoenas or court orders, allows law enforcement officials to use broader surveillance methods, and increases fines for certain computer hacking crimes (including the transmission of computer viruses to university computers).
The Act amends FERPA, allowing universities to disclose education records, without the consent or knowledge of the student, to the Attorney General of the United States in response to an ex parte order in connection with the investigation or prosecution of terrorism crimes.
The Act requires full implementation and expansion of existing laws relating to the Student and Exchange Visitor Program (SEVP) and Student Exchange Visitor Information System (SEVIS) formerly known as CIPRIS. The system will allow educational institutions to report and share information electronically with the government. (Section 641 of IIRIRA, 8 USC §1372 (a)).
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Proprietary Information/Confidentiality/Nondisclosure Agreements
Mutual (Exchange of Information by Both Parties GIT Employees Only)
Mutual (Exchange of Information by Both Parties GTRI Employees Only)
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